Executors flex their Mussell
The eight new cases which went online last week, and form Costs Law Reports Online 2 of 2018, include an interesting decision in Mussell v Patience (available to non-subscribers free for this month only), which brings into sharp focus an issue frequently in the forefront of the minds of beneficiaries who feel that the estate of their benefactor has been overcharged: what justification do executors need to provide to substantiate their charges for obtaining grants of probate and administering estates? In addition, subscribers will remember that in the March bulletin we wrote about Freemasonry within the judiciary, with particular reference to an article in the Times, which had referred in that context to “a covert brotherhood” of police and judges, with mention being made of “funny handshakes”. Now the spotlight is on judges who bully! A recent article in Counsel and a report in Legal Futures feature concern and indignation at a growing culture of “rude”, “abrasive” judges whose conduct, it is alleged, amounts to judicial bullying. We all remember the days of the dreaded “Bull”, namely, Judge Bullingham, who dominated the criminal courts frequented by Horace Rumpole of the Bailey in the 1970s, but bullying in the 21st century, surely not? We take a look (see below).
First Mussell. The judgment of His Honour Judge Matthews sitting as a deputy judge of the High Court concerned a dispute between beneficiaries about the costs charged to the estate of the deceased testator. On the claimants’ side were the solicitor executor plus the daughter of the deceased, whilst the defendants were the latter’s siblings who had refused to approve the Estate Accounts on the grounds that the executor’s charges could not be justified. The issue, accordingly, for HHJ Matthews was to break the impasse within the family, which required him to consider the level of information which executors need to provide in order to justify their charges.
It is to be remembered that often the testator will have appointed as executor the solicitor who drafted the will and, in these circumstances, the solicitor/executor will instruct their own firm to administer the estate. It follows that the estate (assuming that the will contains a charging cause as inevitably it does) will bear the fees of both the executor and the instructed solicitors, who will all be paid prior to any distribution to beneficiaries. The issue then arises: what happens if the beneficiaries believe that the estate has been overcharged with a knock-on effect upon their testamentary gifts. Put simply, the bigger the charges rendered by the solicitor and executor, the less dosh there will be available for beneficiaries and residuary legatees.
In the view of the judge in Mussell on the taking of the account, all that the executors needed to do was to provide, by way of “voucher”, no more than basic information contained in the solicitor’s invoice that the charges claimed related to the administration of the estate. It was not necessary for the voucher to disclose the number of hours worked or the hourly rate used to arrive at the total charged, nor to give a detailed breakdown of exactly what work had been done. Indeed, as he put it:
“the executor is not required at the outset to prove by his or her voucher(s) that the charge made is reasonably incurred or reasonable in amount. These are matters which may arise in the assessment of solicitor’s costs … That is what the system of assessment of solicitor’s costs is for. As is well known, it is not only the direct client (here the executor), who may seek assessment of costs. In addition, third parties who may in substance pay such costs may do so too …”
Based upon that judicial guidance, it would seem that the disgruntled beneficiaries’ remedy must lie in an action under s 71 of the Solicitors Act 1974, which provides:
“Where a person other than the party chargeable with the bill for the purposes of s 70 has paid or is or was liable to pay a bill either to the solicitor or to the party chargeable with the bill, that person … may apply to the High Court for an order for assessment of the bill as if he were the party chargeable with it …”
But wait. As we point out in the headnote in Mussell, the Court of Appeal has already given guidance about third party detailed assessments under s 71 (see Tim Martin Interiors Ltd v Akin Gump LLP  2 Costs LR 325), and has concluded that:
“On an assessment under s 71, the court is entitled to interfere with the hourly rate agreed between the solicitor and the client, but only to the extent that it could have interfered with it at the behest of the client.”
That is because where, as inevitably happens, the solicitor executor, as the client, agrees the charges which his firm has made for administering the estate, the court cannot allow any lower sum under s 71, because it would not have been unable to do so under s 70, due to the prior approval given to the charges. In these circumstances (per Lloyd LJ):
“The effect of my conclusions as regards both quantification and payment is that a third party assessment under s 71 is of limited use to a third party.  … A claim for an account may be the right approach for several situations which can throw up this sort of problem, for example in the case of a trust or the administration of an estate  … In the light of this judgment it may be anticipated that third party assessments will become rare, whereas claims for an account, and like proceedings in other types of case, where the real issue is as to the reasonableness of legal costs, best resolved by those experienced in the assessment of costs, may become much more frequent .”
So, according to the Court of Appeal, the dissatisfied beneficiaries’ remedy lies in the taking of an account. But is this not what was happening in Mussell and all that the executors had to do was to provide simple receipts in order to justify the charges? It would appear so and, in the circumstances, it follows that the dissatisfied beneficiaries appear to be without a remedy, absent any skulduggery by the executor or the firm of solicitors instructed to administer the estate. In the result, in Mussell, the judge told parties to serve receipts and have a dialogue and if agreement could not be reached he would make a decision on paper. Not much help for the dissatisfied beneficiaries.
Now that the judicial gender balance is significantly different to what it was twenty years ago (more women, fewer blokes), it is perhaps surprising that articles are being written about judicial bullying which is said to be prevalent in today’s courts of England and Wales. Going back a bit, the typecast is of the elderly crusty white male judge wagging his finger at the defendant in the dock as he dons his black cap, prior to sentencing the unfortunate to being taken to a place of execution and hung by the neck until dead, with the Good Lord to have mercy on his soul. In later times, the typecast is more in the mould of the late Sir Aubrey Melford Stevenson (who retired as a High Court judge in 1979 and lived in a house called “Truncheons”) with his reasoning on pronouncing sentence:
“I must confess I cannot tell whether you are innocent or guilty. I am giving you three years. If you are guilty you have got off lightly. If you are innocent, let this be a lesson to you!”
That was then and now is now and times have changed for the better surely?
But have they? Now we are being told that judges, instead of behaving in the Melford Stevenson way, are now bullying counsel: this is taking the form of “acid sarcasm”, the “deployment of legal reference as thinly disguised weapons of humiliation” and of counsel being “gratuitously shouted at”, all of which is leading to the undermining of professional confidence at the Bar.
These descriptions are taken from articles and tweets written on this subject by Jo Delahunty QC, Mary Aspinall-Miles and Judith Trustman of counsel within the past few months (see for example Counsel, March edition). As a result of their experiences, those counsel can name the judges who they would wish to appear before and those who they would wish to avoid.
One such example of judicial bullying of a member of the Bar is described by Judith Trustman:
“Just on his feet in his second six, he had arrived for a case in which none of the lay clients or opposing representatives had turned up. Before he knew he was the only person present, he had handed in a document upon which he had intended to rely on in the hearing. Called in by the judge, he went into court alone. She threw the document across the table, saying ‘What the f**k is this? I am not reading this.’ He wanted to know if this was normal judicial conduct.”
Deplorable, but back in the knock-about days of the Queen’s Bench Masters’ corridor thirty or so years ago, whilst the use of the “F” word was never, ever, part of any judicial vocabulary, entreaties from the bench including such terms as “GET OUT” (Master Ritchie) or the throwing up in the air of a bundle of pleadings where these had been handed up in the wrong order, were part and parcel of daily life in the 10.30 am list. That list was for solicitors and their clerks (barristers who appeared in it could expect to be shown the door), so the experience could be chastening for those advocates who had carelessly left the Further and Better Particulars back at the office.
Judicial bad manners, perhaps, but bullying? Certainly not. Whilst the prevailing view was that the Masters could and should be a bit merciful to those who appeared in the 10.30 list, no one suffered from their experiences and it was accepted that the noon list (reserved for counsel), was open season: those advocates who were unprepared could expect to be given the sharp end of the Master’s tongue and would need to be ready to defend their corner against any judicial invective that came their way.
As to knowing and naming those judges who you would wish to appear in front of and those who you did not, the solution was simple. In those days, the assigned Master was allocated by reference to a large paper diary kept by the clerks. The answer to the assignment conundrum was to avoid days when a Master whose name began with an R or W were presiding, and to wait instead until those starting with an L or P were taking the day’s judicial business. It all seemed to work and no one appeared to be the worse for the experience.
Back to contemporary judicial bullying. A consistent theme of the articles and tweets is that the affected barristers “Don’t tell”. The reasons for that are that they do not want their reputations to be compromised by making their judicial criticisms widely known, lest, on another day, they will be listed before the bullying judge about whom the complaint has been made.
Understandable, but there is now a striking difference between the judicial conduct described above thirty or so years ago, and that said to be taking place now. Contrast “then” and “today”: all proceedings now in the courts in England and Wales are tape recorded and, in these circumstances, not only will the words used in court be evident from the transcript, but the tape itself will reveal the intonation used by the judge.
“Please sit down Mr so-and-so” may look innocuous on paper, but “PLEEEZE SIT DOWN MR SO-AND-SO” yelled at the advocate at the top of a judicial voice won’t sound very good. That being so, would it not be reasonable to suppose that most, if not all, of any judicial bullying will be clear from the transcript and the tape, thereby diminishing the risk of any budding legal careers being imperilled by the making of a judicial complaint? A simple answer would be to apply to the approved judicial transcribers for a transcript of the offending words used by the judge in question and it would then be a case of res ipsa loquitor?
Judicial bullying has also been described as being an extreme form of “judge-itis”. To conclude this bulletin, it is appropriate to mention a touching tale about judge-itis and about judge-itis in reverse. It comes from a tribute in the Times to the late judge HHJ Leonard Krikler on March 12:
"After his retirement Leonard was invited to lunch at court by his former colleagues. When the time came to for the courts to sit again, the usher was nowhere to be found; one judge refused to go into court unless announced.
A little taken aback, Leonard agreed to stand in. The last words that this distinguished judge spoke in court were therefore “All rise!”
The headnotes and full texts of the cases below are available to online subscribers at www.costslawreports.co.uk. Follow Costs Law Reports on Twitter to be notified of new cases as soon as they are published.
New cases this month
- Surrey v Barnet and Chase Farm Hospitals NHS Trust; AH v Lewisham Healthcare NHS Trust; Yesil v Doncaster and Bassetlaw Hospitals NHS Foundation Trust  2 Costs LO 141: Conditional fee agreements: whether transferring legally aided claimants onto CFAs prior to changes in funding rules under s 46 LASPO 2012 had resulted in the incurring of unreasonable additional costs (success fees and ATE premiums) where the advice given about the changes had been exaggerated and/or misrepresented) rather than being fully informed.
- Re M (a Child)  2 Costs LO 169: Whether costs of successful appeal in family proceedings should be paid by the losing local authority: whether it had unreasonable to have defended the appeal and/or whether hardship would be caused by the scale of the unrecovered costs.
- Dana Gas PJSC v Dana Gas Sukuk Ltd and Others  2 Costs LO 189:Payment on account under CPR 44.2(8) subject to detailed assessment; proportionality of costs in heavy commercial litigation; principles to apply.
- Sprey v Rawlison Butler LLP  2 Costs LO 197:Conditional fee agreements and assessment of bills under s 70 Solicitors Act 1974: whether interim bills for 40% of full charges were final “statute” bills, where later bills for the balance of 60% were rendered upon the achieving of a “win” under the CFA in the underlying action.
- Corstorphine v Liverpool City Council  2 Costs LO 213: CPR 44.13 to 44.17, QOCS; whether QOCS regime applies in respect of a Part 20 claim where an original CFA was a pre-commencement funding arrangement under CPR 48.2 entered into pre–1 April 2013 and Part 20 proceedings adding additional defendants were brought after 1 April 2013.
- Ballard v Sussex Partnership NHS Foundation Trust  2 Costs LO 227: Part 36 offer; relevance on costs order of a Part 36 offer which has been withdrawn and replaced by a later and lower offer.
- Mussell and Another v Patience and Another  2 Costs LO 239: Administration of estates: level of evidence required on an application for approval of estate accounts to prove charges made by an executor were “just allowances” within CPR PD 40A, para 4, the rules on detailed assessment not being applicable to settling an account between executor and beneficiary. Free for this month only!
- Springer v University Hospitals of Leicester NHS Trust  2 Costs LO 247: Relief from sanctions; failure to serve notice of funding under CPR PD PAC 9.3 to CPR 43.2(1)(k) “as soon as possible”: relief refused.